Gardner v. Keteltas & M'Carty — 3 Hill & Den. 330

Majority

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Gardner vs. Keteltas and M’Carty.

Headnote

The usual covenants of title and quiet enjoyment in a lease, import no more than that the lessor has, at the time, such a title to the demised premises as enables him to give the lessee a legal right of entry and enjoyment during the term.

If the lessee be prevented from entering upon the demised premises by one already in possession under paramount title, an action lies against the lessor for a breach of the covenants. Per Nelson, Ch. J.

Such covenants, however, import no warranty, express or implied, as respects the acts of strangers; and hence, if the lessee be prevented from entering into possession by1 a former tenant whose term has expired, the remedy is to be sought against the latter, and not against the lessor.

Where premises were let to G. by an agreement, not under seal, containing a promise that he should have the sole and uninterrupted use mad occupation &c.; and, at the commencement of the teim the premises were occupied by one M., a former tenant, but whose lease had expired: Held, in an action by G. against the lessor for being kept out of possession, that the latter was not liable.

Semble, that M. might have been proceeded against by G. in his own name under 2 22. S'. 513 authorizing “ summary proceedings to recover the possession of landthe latter being within the term assigns, as used in § 29 of the statute.

• Error to the superior court of the city of New-York, where Gardner sued Keteltas and M’Carty in an action on the case. The plaintiff sought to recover damages alleged to have been sustained by reason of the defendants’ neglect to put him in possession of certain premises in the city of New-York according to the terms of a lease thereof in the usual form of landlords’ agreements, certifying that the defendants had let and rented to the plaintiff all that certain house and lot, known &c., and the sole and uninterrupted use and occupation thereof, for the term of one year, to commence on the first day. of May, 1836. It appeared at the trial that, on the day mentioned, one Morse was in possession of the premises, having in fact no title thereto, but insisting upon his right to occupy them in virtue of a former lease under which he had entered, and which, as he claimed, had not yet expired. Proceedings were instituted by one of the defendants against Morse, who was removed from the premises on the 12th of September, 1836, by virtue of a warrant issued under 2 R. S. 424, § 39,2d ed., and the

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plaintiff put into actual possession on the same day. No rent had been paid by or exacted from the plaintiff for the time the premises were occupied by Morse ; but the plaintiff claimed that he had sustained damages in being deprived of the possession during that time. After evidence had been given as to the amount of damages, the court below directed a nonsuit. The plaintiff excepted, and, after judgment, sued out a writ of error.

■J. Anthon,- for the plaintiff in error.

C. O’Connor, for the defendants in error.

Although this is an action upon an agreement not under seal, the principal question in the case is to be determined as though it had arisen in an action by a lessee against his lessor for a breach of the ordinary covenants of title and quiet enjoyment j for certainly, the promise that the plaintiff should have the sole and uninterrupted use and occupation of the premises, cannot be construed to have a more extended effect than such covenants. Assuming this to be so, how does the case stand 1 It is not denied that the plaintiff acquired a perfect title to the premises by virtue of the lease ; but it is insisted on the part of the plaintiff, that the defendants were bound to put him into actual possession of the demised premises, and that they are therefore liable for damages resulting from the wrongful holding over of the former tenant.

I have found no decision, nor has any been referred to, going the length claimed by the plaintiff; and it is quite clear, upon general principles, that the action cannot be sustained. All that either of the covenants mentioned exact of the lessor is, that he shall have such a title to the premises, at the time, as shall enable him to give a free, unincumbered lease for the 'term demised. There is no warranty express or implied against the acts of strangers ; hence, if the lessee be ousted by one

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who has no title, the law leaves him to his remedy against the wrong-doer, and will not judge that the lessor covenanted against the wrongful acts of strangers unless the covenant be full and express to the purpose. (Noke’s case, 4 Rep. 80 ; Dudley v. Folliott, 3 T. R. 584 ; Hayes v. Bicker staff, Vaugh. 118 ; Platt on Cov. 314, and the cases there cited.) I admit, the covenant of quiet enjoyment means to ensure to the lessee a legal right to enter and enjoy the premises, and if he is prevented from entering into the possession by a person already in, under a paramount title, the action may be sustained. That was decided in Ludwell v. Newman, (6 T. R. 458.) In such a case, no ouster or expulsion ismecessary on which to predicate a suit, as the lessee is not bdjmd to enter and commit a trespass. (Holder v. Taylor, Rob. 12 ; 1 Saund, 322 a. note (2) ; Platt on Cov. 327 ; Grannis v. Clark, 8 Cowen, 36 ; and see 25 Wend. 446 .) But if the party holding is a wrong-doer, the remedy of the lessee is as perfect and effectual to dispossess him after, as that of the lessor was before the execution of the lease. This is clearly so as it respects the remedy by ejectment, and, I apprehend, equally so as it regards the more summary proceedings under the statute. (2 R. S. 422, §§ 28, 29 et seq. 2d ed.) Indeed, as to the remedy by ejectment, the suit must be brought by the lessee, the right of entry being in him alone at the time,^[1] The 29th section of the statute referred to, authorizes any landlord, or lessor, his legal representatives, agents or assigns, to make oath in writing of the facts which authorize the removal &c. This is a remedial statute, and should be liberally expounded in furtherance of its objects ; and it appears to me that, without any very strained construction, the lessee may be regarded as falling within the term assigns, and, as such, may institute proceedings under the

(a) (a) Otherwise, where the lease is void as to the wrong-doer, by reason of its having been executed while the latter was in possession claiming adversely to the lessor. (Livingston v. Proseus, 2 Hill, 526 .)

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act.^[2] But whether this be so or not, upon the well settled construction of the covenants of title and quiet enjoyment it is not the duty of the landlord, when the demised premises are wrongfully held by a third person, to take the necessary steps to put his lessee into possession. The latter being clothed with the title by virtue of the lease, it belongs to him to pursue such legal remedies as the law has provided for gaining it, whether few or many.

Judgment affirmed.

(b) (b) See Birdsall v. Phillips, ( 17 Wend. 464 .)